Study: Apology Laws Don’t Decrease Medical Malpractice Lawsuits

In general, we want to encourage people to say, “I’m sorry” if they’ve made a mistake. It’s the decent thing to do and it can promote good will and closer relationships. But in the realm of litigation, admitting to a mistake may mean admitting to millions of dollars worth of civil liability.

In an attempt to strike a balance between decency and legal protections, many states passed so-called apology laws, allowing physicians to express sympathy to patients and families without it being used against them in medical malpractice lawsuits. The idea was that giving doctors and patients a chance to reconcile would reduce the number of lawsuits or the amount at stake in those suits. But that hasn’t been the case.

Sorry State of Affairs

Previous studies determined that most malpractice lawsuits are expressions of anger over unsatisfactory results of medical procedures. So lawmakers in over 30 attempted to address this outrage by enacting apology laws, hoping that by excluding statements of condolence or sympathy from malpractice trials might be enough to encourage more apologies and therefore allow doctors and patients to resolve cases without legal intervention.

For physicians who do not regularly perform surgery, apology laws increase the probability of facing a lawsuit and increase the average payment made to resolve a claim. For surgeons, apology laws do not have a substantial effect on the probability of facing a claim or the average payment made to resolve a claim.

Apologies and Admissions

So why doesn’t saying “I’m sorry” work? According to Benjamin McMichael, a postdoctoral scholar at Vanderbilt and one of the authors of the study, an apology “might transport a signal.” “By apologizing,” McMichael told the Madison Record, “the doctor tells the patient he screwed up when the patient previously did not know that. They can’t use the apology itself, but knowing something went wrong, they can look for other evidence that they can use.”

So even though doctors are being more civil with their patients, they’re not avoiding civil lawsuits regarding their care.